200 F.

2d 213

REILLY,
v.
DUNNAVANT.
No. 6498.

United States Court of Appeals Fourth Circuit.

Argued Nov. 17, 1952.
Decided Dec. 11, 1952.

Joseph Weiner, Philadelphia, Pa. (Wilfred R. Lorry, William D. Valente,

Freedman, Landy & Lorry, Philadelphia, Pa., and Jett, Sykes & Howell,
Norfolk, Va., on the brief), for appellant.
M. Wallace Moncure, Jr., Richmond, Va. (Moncure & Cabell, Richmond,
Va., on the brief), for appellee.
Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.
DOBIE, Circuit Judge.

This is an appeal from a judgment of the District Court of the United States for
the Eastern District of Virginia, in favor of the defendant on his motion for a
directed verdict. The action was instituted to recover damages for personal
injuries sustained by the plaintiff as a result of an accident in which he was
struck by defendant's automobile. The incident occurred on the evening of
March 4, 1948, on U.S. Highway No. 1, near Ladysmith, Virginia.

Several hours preceding the accident, plaintiff was afflicted with mental
aberrations while riding a bus toward Philadelphia and was removed to the
Mary Washington Hospital at Fredericksburg, Virginia, by officers of the state
police force. According to the uncontradicted medical testimony, the plaintiff's
condition was caused by a psychosis of general paresis from which he was then
suffering. Despite his condition, plaintiff was permitted to leave the hospital
and several hours later was discovered wandering aimlessly on U.S. Highway
No. 1 near the scene of the accident, about 23 miles south of Fredericksburg.
For a period of several minutes immediately before the accident, plaintiff was

seen standing in the center of this four-lane highway on the double line which
divides the two northbound from the two southbound lanes.
3

At this time, the defendant was driving north in the outside or eastbound lane of
the highway. At the scene of the accident, the road is approximately forty feet
wide and is straight and level. It was a clear, dark night, and defendant was
traveling at a speed of 45-50 miles per hour, with his headlights burning, when
plaintiff first came into his line of vision about 40 or 50 feet away. At the time
defendant first saw him, the plaintiff was in the second lane from the east, the
passing lane for northbound traffic. He was some 6 feet to the left of the
defendant's line of travel and walking at a rapid gait toward the outside lane at
right angles to the path of defendant's car. Upon seeing the plaintiff, defendant
attempted to apply his brakes and swerve his vehicle but was unable to avoid
striking the plaintiff as he stepped in front of the automobile. As a result of his
injuries, plaintiff was required to undergo extended periods of hospitalization
during which his left leg was amputated.

The plaintiff was completely disoriented on the night in question and had no
recollection of the events culminating in the accident. Because of this,
defendant conceded that there was no issue of contributory negligence, and at
the close of the evidence moved for a directed verdict on the sole ground of the
insufficiency of the evidence to support a finding of negligence. This motion
was granted and subsequent motions by the plaintiff to set aside the verdict and
for a new trial were denied. We are asked to review the correctness of these
rulings.

Since the negligence of the defendant can be predicated only upon facts
sufficient to justify the conclusion that he violated some legal duty owed to the
plaintiff, it is necessary at the outset to discuss the nature and extent of that
duty. So far as motorists and pedestrians are concerned, the right to use the
public highways is an equal and coordinate right. The motorist is bound to use
reasonable care for the protection of pedestrians on the highway, and to
proceed with such caution as the circumstances may require to avoid
endangering them. It is also true that the pedestrian is required to exercise
reasonable care for his own safety, and the motorist has a right to assume that
such care will be employed. A motorist is not required to anticipate that a
pedestrian, because of a mental infirmity, will be unable to meet the standards
of conduct required of an ordinary person. Nor is the motorist's duty to one so
afflicted greater than his duty to one in possession of all his faculties, unless he
has notice of such incapacity and its enervating effects.

This principle is aptly stated in 65 C.J.S.,Negligence, 12, page 401,

Knowledge of Incapacity:

'In the absence of anything which should reasonably suggest such a condition,
one is not required to anticipate that another may, for some reason, be unable to
exercise ordinary care for his own safety, but the duty to exercise special care
with respect to a person, who is for any reason unable to take such are of
himself as the normal person might, arises only where there is actual or imputed
knowledge of the incapacity. Accordingly, negligence cannot be predicated on
conduct which have reached the standard of ordinary care with respect to an
ordinary and normal person in the absence of any actual or imputed knowledge
of any infirmity or incapacity of the person in question.'

In the instant case, the defendant had no previous knowledge of the plaintiff's
incompetence, and certainly he had no opportunity to determine his mental
condition in the short interval which elapsed between the plaintiff's coming into
view and the collision. Consequently, the question of defendant's negligence
must be considered in the light of the duty owed by a motorist to a pedestrian
sui juris and resolved on the basis of the state law defining such duty.

Aside from the feature of the plaintiff's incompetence, the facts in the case of
DeMuth v. Curtiss, 188 Va. 249, 49 S.E.2d 250, are strikingly similar to those
in the case at bar. In that case the plaintiff was running across U.S. Highway
No. 1 from the west to the east side, while defendant was driving north in the
right hand lane of the highway at a speed of 40 miles per hour. Defendant first
saw plaintiff when the beam of his left headlight flashed upon her, at which
time she was some 2 or 3 feet inside the lane in which defendant was driving
and which plaintiff was attempting to cross. Although he instantly applied his
brakes and attempted to swerve his car, defendant was unable to avoid striking
her. Reversing a judgment of the lower court in favor of the plaintiff and
entering final judgment for the defendant, the Court stated, 188 Va.at pages
255, 256, 49 S.E.2d at page 253:

10

'The plaintiff argues that there is evidence from which the jury was justified in
finding that, after the plaintiff was in a position of peril, if the defendant had
kept a proper lookout he would have discovered her in that condition in time to
have avoided the accident. But there is no reliable evidence as to when the
plaintiff was first in a position of peril. Her own testimony, as well as that of all
the witnesses who saw her, is that she continued running from the time she
reached the double center lines until she was struck. There is nothing to justify
a conclusion that she was in peril until she actually ran in front of the
defendant's car. If defendant had seen her running before that time, he would
have been justified in assuming that she would see his car coming and stop

before entering the lane in which he was traveling.'

11

See, also, Hooker v. Hancock, 188 Va. 345, 49 S.E.2d 711; Stark v. Hubbard,
187 Va. 820, 48 S.E.2d 216; Jenkins v. Johnson, 186 Va. 191, 42 S.E.2d 319.

12

It is clearly the law in Virginia that the operator of an automobile owes no duty
to a person running across the highway at right angles until such time as that
person has placed himself in a position of peril, and that such person has not
assumed a perilous position until he enters the lane in which the motorist is
traveling or gives some indication that he is heedless of the danger about him.
Consequently, the contention of the plaintiff that if the defendant had been
keeping a proper lookout he could have seen the plaintiff sooner, is immaterial.
Since the defendant here owed no greater duty to the plaintiff than he did to a
person sui juris, he would have been justified in assuming that the plaintiff was
aware of his approach and would not attempt to cross defendant's line of travel
in close proximity to his automobile.

13

The plaintiff introduced no evidence tending to show that the defendant's

headlights were defective, and in the absence of such evidence the conclusive
presumption is that they were burning properly. Millard v. Cohen, 187 Va. 44,
46 S.E.2d 2. Nor is it the law in Virginia that a motorist must operate his
vehicle while driving at night so that he can stop within the range of his lights.
Body, Fender and Brake Corporation v. Matter, 172 Va. 26, 200 S.E. 589;
Twyman v. Adkins, 168 Va. 456, 191 S.E. 615. On the whole of the record, we
conclude that the evidence of the plaintiff was insufficient to support a finding
that defendant failed in any duty owed to the plaintiff, and that the District
Court properly granted defendant's motion for a directed verdict. Accordingly,
the judgment of the District Court is affirmed.

14

Affirmed.